17 bills that likely would have passed the Senate if it didn’t have the filibuster

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ByDylan Matthews

December 5, 2012

Arguments over the filibuster tend to devolve into relatively esoteric debates about minority rights and majority rule. But let's ground this conversation in real-world consequences: In the absence of the filibuster, what laws would have passed the Senate that didn't?

In order to limit the size of the search, we begin the clock with the 111th Congress, which began in January 2009. We're looking for bills that got more than 50 votes in the Senate but that didn't make it to the president's desk. In most cases, bills that failed due to a filibuster in the 111th Congress had already passed the House, so they would be law today. In the 112th Congress, the Republican House was less aligned with the Democratic Senate, and so passage in the Senate does not mean the bills would gave been passed into law.

A disclaimer: If there was no filibuster, the two parties' strategies would be different. The bills they pushed would almost certainly be different. No examination of roll-call votes will reveal the bills that would've been passed in a world without the filibuster, but which the majority party didn't bother pursuing because they recognized they would be filibustered.

111th Congress

DREAM Act

(Aurora Colon / AP)

Perhaps the most consequential blocked bill in 2009 and 2010 was the DREAM (Development, Relief, and Education for Alien Minors) Act, which would provide a path to citizenship for undocumented immigrants who were children when they immigrated, provided they serve in the military or go to college. It was blocked twice, once as an amendment to a defense appropriations bill that was paired with repeal of Don't Ask, Don't Tell, and once as part of the banal-sounding Removal Clarification Act of 2010. It had already passed the House, so if not for the filibuster, it would be law.

Also failingtwice was the DISCLOSE (Democracy Is Strengthened by Casting Light On Spending in Elections) Act, which would require corporations to disclose their political spending, and bar government contractors, TARP recipients and foreign firms from such spending. The bill was drafted as a response to the Citizens United ruling in 2010, and could have had a major impact on the 2012 elections if it had passed.

Employee Free Choice Act (EFCA)

Union protesters in Wisconsin (Washington Post)

It's less clear that the Employee Free Choice Act would have passed were it not for the filibuster than it is for DREAM and DISCLOSE, because the Senate never voted on Employee Free Choice Act in 2009. But at the time, well over Democratic Senators had indicated their support of the bill, which also got 51 votes and passed the House in 2007, when Democrats had fewer seats, meaning it was especially likely to pass in 2009. The act would allow workers to form unions by collecting signatures of more than half of a workplace. Currently, workers hold elections to determine if they'll have a union, a process which union activists complain is prone to management interference. One study, admittedly from a pro-union outfit, found that it would increase union membership in the United States by about 10 percentage points, a near doubling.

Public option

(John Moore - GETTY IMAGES)

In November 2009, the House passed the Affordable Health Care for America act, a health reform bill that included a government-run health plan or "public option" similar to Medicare that exchange participants could purchase instead of private insurance. That same year, Sen. Tom Harkin (D-Iowa) announced that he had 51 votes for such a proposal in the Senate. But as anyone who followed the health care debate recalls, the proposal died when Sens. Joe Lieberman (I-Conn.) and Ben Nelson (D-NE) declared their intention to filibuster a bill that included it. Absent a filibuster, it's likely a public option would have gone through.

Paycheck Fairness Act

This bill would make it easier for women to raise concerns about pay inequity in their workplaces, by requiring employers to demonstrate that any pay differentials between men and women are due to different responsibilities and not just gender, by allowing women to disclose their salaries for the purpose of investigating pay disparities even when otherwise prohibited from doing so, and by banning retaliation against women who bring up pay inequality. It passed the House easily but despite previous support for similar legislation by Republican senators such as Susan Collins (Maine), Kay Bailey Hutchison (Texas), Lisa Murkowski (Alaska) and Olympia Snowe (Maine), it only got 58 votes in the Senate. The bill was filibustered again in June, when it only received 52 votes.

Permanent middle-class Bush tax cut extension

Sen. Max Baucus (D-Mont.) (Marvin Joseph / Washington Post)

In late 2010, Sen. Max Baucus (D-Mont.) offered a bill to permanently extend the Bush tax cuts for workers making less than $250,000. Barring further action, the bill would have let the high-income cuts expire. The measure, which had already passed the House, failed, 53-46, with a number of Democrats, both moderate --Joe Manchin (W.Va.), Joe Lieberman (Conn.), Jim Webb (Va.)-- and liberal -- Russ Feingold (Wisc.) voting against it.

Rescinding of the upper-income Bush tax cuts

Sen. Chuck Schumer (D-N.Y.). (Marvin Joseph / Washington Post)

At the same time that the Baucus amendment was being considered, Sen. Chuck Schumer (D-NY) introduced a bill that would permanently rescind the Bush tax cuts for people making over $1 million, a much higher cutoff than the $250,000 mark used in the Baucus amendment and supported by the Obama administration. It failed by the same margin as the Baucus proposal, and almost certainly would have passed the House, which had passed the less-rich-friendly Baucus plan only days prior. Ultimately, the deal Obama reached with Congressional Republicans to extend all of the cuts for two years and pair them with a payroll tax holiday rendered both proposals somewhat moot.

Public Safety Employer-Employee Cooperation Act

Fire Station No.3 in Fairfax County (Shamus Ian Fatzinger/Fairfax County tTmes)

This bill, which passed the House in 2007, and almost certainly would have done so again in 2010, would have required states to provide collective bargaining rights to public safety workers such as police and firefighters. Twenty states at the time were in violation of the bill's provisions; it's unclear that Wisconsin's notorious anti-collective bargaining law would be in violation, given that it exempts police and firefighters. Those states would need to allow police and firefighters to establish unions if the legislation had passed. But despite rumblings that some Republicans would cross the aisle to back the bill, it failed to break a filibuster, 55-43, and died for the foreseeable future in December 2010.

Normally, Social Security benefits are regularly increased to take into account increases in the cost of living, a process called a "Cost of Living Adjustment" or COLA. However, due to Congressional inaction, seniors in 2011 did not receive their COLA. This bill aimed to reverse that by issuing a $250 tax credit to all seniors, veterans, and non-senior Social Security beneficiaries. The act earned a large majority in the House, but because it was put to a vote under rules that required a two thirds majority, it failed there. But it failed in the Senate first, 53 to 45.

Creating American Jobs and Ending Offshoring Act

Source: Daniel Ramirez, Flickr

This bill would have barred corporations from benefiting on deductions and/or credits due to outsourcing and from deferring payment if taxes on profit earned abroad, a policy which encourages outsourcing. It would also exempt employers who "insource" jobs - that is, who move operations from abroad to the United States -- from the employer portion of the payroll tax for those newly hired U.S. workers. The House never voted on the bill, but given its composition during the bill's consideration in 2010, passage was probable. Nevertheless, the bill failed, garnering 53 votes with a few Democrats defecting.

112th Congress

American Jobs Act

Members of the U.S. Congress applaud as President Obama addresses a Joint Session at the U.S. Capitol. (Chip Somodevilla - GETTY IMAGES)

This bill is the Obama administration's most recent stimulus proposal. It includes a 50 percent cut in the payroll tax for workers, and a similar cut for small businesses, as well as aid to states to pay teachers and other workers, infrastructure spending, unemployment benefit extensions and incentives to hire unemployed workers, and more. It gained 50 votes, which with the support of Senate Majority Leader Harry Reid (D-Nev.), who voted no for procedural reasons, would have been enough for passage (and even without Reid, Vice President Biden could have stepped in) absent the filibuster.

The Buffett rule

President Obama presents a 2010 Presidential Medal of Freedom to Warren Buffett in February 2011. (Carolyn Kaster - AP)

The Buffett rule would set a 30 percent minimum tax for the very wealthy, phasing in from $1 million to $2 million. It got 51 votes in the Senate, with Sen. Mark Pryor (D-Ark.) the only Democrat voting no.

Teachers and First Responders Back to Work Act of 2011

(Khalil Senosi - AP)

A subset of the American Jobs Act (see above), this bill would have provided $30 billion in funding for teachers as well $5 billion in funding for public service workers like police officers, and paid for it with a 0.5 percent surtax on income over $1 million. Like its parent legislation, it died a filibuster-induced death. Pryor, as well as Sens. Joe Lieberman (ID-CT) and Ben Nelson (D-NE), voted no, leaving the tally at 50-50, enough to pass with Vice President Biden breaking the tie.

Repeal Big Oil Tax Subsidies Act

A derrick at work in the middle of the desert in El Chanar in energy-rich Neuquen province, southern Argentina. (Juan Forero / The Washington Post)

As the name implies, this legislation would have repealed a bevy of tax measures that benefit oil companies. For example, the industry would no longer count as "manufacturing" and thus not benefit from manufacturing tax credits, and royalty payments to foreign governments for the right to drill would not count as deductible foreign taxes. Nelson and Sen. Mark Begich (D-Ark.), a normally quite liberal Senator who nonetheless represents an oil-rich state, voted no, leaving the final tally at 51 votes in favor, not enough to break a filibuster.

"Shared Sacrifice"

Senate Majority Leader Harry Reid. (Photo: AP)

Senate Democrats drafted a resolution stating that "any agreement to reduce the budget deficit should require that those earning $1,000,000 or more per year make a more meaningful contribution to the deficit reduction effort." Shockingly, Republicans didn't go for that. The resolution got 51 votes, with Nelson and Pryor voting no.

Introduced by Senate Minority Leader Mitch McConnell (R-Ky.), this bill would eliminate a specific tax requirement imposed on government contractors. Democrats liked this, but didn't like what McConnell did to pay for it, namely taking $30 billion out of existing appropriations that Congress had already approved. The White House issued a veto threat, and while nine Democrats voted to invoke cloture, including lefties like Al Franken (D-MN) and Robert Menendez (D-N.J.), it still failed to break a filibuster, 57 to 43.

In 2003, Congress passed the Burmese Freedom and Democracy Act, which was intended to bolster democratic forces within that country, which then as now is governed by a military junta. The bill specifically includes restrictions on imports from Burma, a measure intended to put pressure on the regime to reform. Those import restrictions have traditionally been renewed every year, and are supported by many Burmese dissidents, most notably opposition leader and Nobel Peace Prize winner Aung San Suu Kyi.

However, in September 2011 Republicans filibustered the measure. Six broke ranks to support it, including conservatives like Sens. Dan Coats (R-IN.), Dean Heller (R-Nev.) and Roy Blunt (R-Mo.), but it failed, with 53 votes in favor and 33 opposed. As a consequence, the sanctions lapsed in July, against the wishes of dissidents.

Appointments

CFPB director Richard Cordray (Joshua Roberts/BLOOMBERG)

These four nominees — for the 9th Circuit Court of Appeals, directorship of the Consumer Financial Protection Bureau, a seat on the National Labor Relations Board, and a seat on bench for the U.S. District Court for D.C. — almost certainly would have gone through absent a filibuster. Goodwin Liu won 52 votes, Richard Cordray 53, Craig Becker 52, and Caitlin Halligan 54. With the exception of Becker, all were appointed in the 112th Congress.

Cordray and Becker both got recess appointments, with the latter's term lapsing in late 2011, and the former's set to lapse at the end of 2013. Halligan was renominated for the seat in September, and might face a vote in the coming year, if not in the lame duck session. Liu, a rising star in legal circles and likely future Supreme Court justice, withdrew his nomination and is now a justice of the California Supreme Court.

But the filibuster also blocked any number of other appointees who didn't get a vote for fear they couldn't break a filibuster. Notable among these are former Medicare administrator Donald Berwick and Fed nominee (and Nobel laureate) Peter Diamond. The filibuster messed up the whole appointments process from 2009 to 2013. Without it, Obama probably could have used his Democratic Senate majority to approve any nominees he wanted.